holding that petitioner’s failure to file timely objections to magistrate judge’s report and recommendation barred further judicial review and no circumstances warranted excusing the default in the interests of justice
How later courts described this case
- holding that petitioner’s failure to file timely objections to magistrate judge’s report and recommendation barred further judicial review and no circumstances warranted excusing the default in the interests of justice
- finding that a pro se litigant is on notice of the possibility of waiver where the R&R clearly states that failure to object will “preclude appellate review” (citation and quotation marks omitted)
- holding that notice is sufficient if it informs the litigants that the failure to timely object will result in waiver of further judicial review and it cites pertinent authority
- finding waiver where pro se litigant “failed to 20 object to the Magistrate Judge’s report after receiving 21 adequate notice of the consequences of a failure to object 22 in a timely manner”
Written by the judges who cited it.
The opinion
JON 0. NEWMAN, Circuit Judge:
Litigants wishing to object to the recommendations of a magistrate judge, submitted in a report to a district judge, have ten days after being served with the report. 28 U.S.C. § 636 (b)(1) (1988). Failure to object within the allotted ten days results in a waiver of further judicial review.
Thomas v. Arn,
474 U.S. 140, 155 , 106 S.Ct. 466, 474 , 88 L.Ed.2d 435 (1985);
McCarthy v. Manson,
714 F.2d 234 , 237 & n. 2 (2d Cir.1983). In
Small v. Secretary of Health and Human Services,
892 F.2d 15, 16 (2d Cir.1989) (per curiam), this Court held that the waiver rule would be invoked against
pro se
litigants only if a magistrate judge’s report (a) informs the
pro se
litigant that the failure to object to the report within ten days will result in the waiver of further judicial review and (b) cites pertinent statutory and civil rules authority. This appeal raises the narrow issue whether a non-material omission from the notice requirements of
Small
may be disregarded by a district court in declining to consider a late objection to a magistrate judge’s report.
The issue arises on the appeal of Floyd Frank from the June 19, 1991, judgment of the District Court for the Eastern District of New York (Reena Raggi, Judge), denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (1988). Because we hold that a non-material omission from the notice required in the magistrate judge’s report does not relieve the
pro se
litigant of the obligation to file timely objections to the report in order to preserve further judicial review, we affirm.
Facts
Following a jury trial
in absentia,
Frank was convicted of Criminal Possession of a Controlled Substance in the Second Degree, in violation of N.Y.Penal Law § 220.18[1] (McKinney 1989). After exhausting his available state remedies,
see People v. Frank,
161 A.D.2d 794 , 556 N.Y.S.2d 368 (2d Dep’t),
appeal denied mem., People v. Frank,
76 N.Y.2d 939 , 563 N.Y.S.2d 69 , 564 N.E.2d 679 (1990), Frank filed a
pro se
habeas petition. Judge Raggi referred the matter to Magistrate Judge Allyne Ross.
The Magistrate Judge issued a report and recommendation dated May 9, 1991, recommending that the petition be denied in its entirety. The report also contained the following explicit warning concerning the need for a timely objection:
Any objections to this Report and Recommendation must be filed with the Clerk of the Court within 10 days of the receipt of this report. Failure to file objections within the specified time waives the right to appeal the district court’s order.
See
28 U.S.C. § 636 (b)(1); Fed.R.Civ.Pro. 6(a), 6(e);
Small v. Secretary of Health and Human Services,
892 F.2d 15, 16 (2d Cir.1989).
The petitioner, still acting
pro se,
failed to file an objection within the ten day period, and the record does not reveal any subsequently filed objections. Because no objection was filed in a timely manner, the District Judge denied the petition substantially for the reasons stated by the Magistrate Judge. A certificate of probable cause was denied by the District Court also for failure to object to the magistrate judge’s report, but this Court subsequently granted the certificate.
*300
Discussion
A party must serve and file any objections to a magistrate judge’s proposed findings and recommendations within ten days after being served with the report. 28 U.S.C. § 636 (b)(1) (1988). We have adopted the rule that failure to object timely to a report waives any further judicial review of the report.
See Wesolek v. Canadair Ltd.,
838 F.2d 55 , 58 (2d Cir.1988);
McCarthy v. Manson,
714 F.2d at 237 & n. 2. The objection is considered waived, however, only if the party had received “clear notice” of the consequences of the failure to object.
See Thomas v. Arn,
474 U.S. at 155 , 106 S.Ct. at 475 . To alleviate the unreasonable burden placed on a
pro se
litigant by a waiver rule found only in case law, this Court requires the magistrate’s report to warn the
pro se
litigant of the consequences of the failure to object. Specifically, the report must state that the “failure to object to the report within ten (10) days will preclude appellate review” and must “specifically cite[] 28 U.S.C. § 636 (b)(1) and rules 72, 6(a) and 6(e) of the Federal Rules of Civil Procedure.”
Small v. Secretary of Health and Human Services,
892 F.2d at 16 (2d Cir.1989);
see also Moore v. United States,
950 F.2d 656, 659 (10th Cir.1991) (collecting cases adopting special notice requirement for
pro se
litigants).
Though Magistrate Judge Ross's report failed to cite Fed.R.Civ.P. 72 as required by
Small ,
we find that the report complied with its requirements in all material respects. The failure to cite Rule 72 was not a material omission due to the clear notice otherwise provided in the report. Rule 72(b) reiterates the statutory requirement of 28 U.S.C. § 636 (b)(1), and provides that a party must file and serve any objection to a magistrate judge’s recommended disposition of a prisoner petition within ten days of being served with a copy of the report. Although Magistrate Judge Ross’s report omitted reference to the rule, it explicitly warned that any objections must be filed within ten days and that “[fjailure to file objections within the specified time waives the right to appeal the district court’s order.” The report then cited section 636(b)(1) and this Court’s decision in
Small ,
thereby providing both statutory authority for the ten day filing period as well as case law authority for the waiver rule. Under these circumstances, a citation to Rule 72 would not provide the
pro se
litigant with any information not already set forth in the express language of the Magistrate Judge’s report.
The petitioner failed to object to the Magistrate Judge’s report after receiving adequate notice of the consequences of a failure to object in a timely manner. We have examined the merits sufficiently to satisfy ourselves that petitioner’s challenge to the state court trial
in absentia,
under the circumstances presented, does not warrant “excusing] the default in the interests of justice.”
See Thomas v. Arn,
474 U.S. at 155 , 106 S.Ct. at 475 (footnote omitted).
The judgment of the District Court is affirmed.